Guy Hobbs v. Elton John

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3652
G UY H OBBS,
Plaintiff-Appellant,
v.
E LTON JOHN, also known as
Sir Elton Hercules John, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12-CV-03117—Amy J. St. Eve, Judge.
A RGUED M AY 31, 2013—D ECIDED JULY 17, 2013
Before F LAUM, M ANION, and R OVNER, Circuit Judges.
M ANION, Circuit Judge. While working on a Russian
cruise ship, Guy Hobbs composed a song entitled
“Natasha” that was inspired by a brief love affair he
had with a Russian waitress. Hobbs tried to publish
his song, but was unsuccessful. A few years later, Elton
John and Bernie Taupin released a song entitled “Nikita”
through a publishing company to which Hobbs had sent
2 No. 12-3652
a copy of “Natasha.” Believing that “Nikita” was based
upon “Natasha,” Hobbs eventually demanded compensa-
tion from John and Taupin, and ultimately filed suit
asserting a copyright infringement claim and two
related state law claims. The defendants moved to
dismiss Hobbs’s complaint for failure to state a claim,
and the district court granted the defendants’ motion.
Hobbs appeals. We affirm.
I. Facts
In 1982, Guy Hobbs began working as a photographer
on a Russian cruise ship where he met and romanced a
Russian waitress. His experience inspired him to write a
song entitled “Natasha” about an ill-fated romance be-
tween a man from the United Kingdom and a woman
from Ukraine. In 1983, Hobbs registered his copyright
of “Natasha” in the United Kingdom, and subsequently
sent the song to several music publishers. One of those
publishers was Big Pig Music, Ltd. (“Big Pig”), a company
that published songs composed by Elton John and
Bernard Taupin. Ultimately, Hobbs’s efforts to find a
publisher for his song proved unsuccessful.
However, in 1985, John released a song entitled “Nikita,”
wherein the singer (who is from “the west”) describes
heartfelt love for Nikita, whom the singer “saw . . . by the
wall” and who is on the other side of a “line” held in by
“guns and gates.” Big Pig registered the copyright
for “Nikita,” and the copyright application lists both John
and Taupin. “Nikita” proved to be extremely successful.
No. 12-3652 3
Hobbs alleges that he first encountered the written
lyrics of “Nikita” in 2001. Believing that “Nikita” infringed
his copyright of “Natasha,” Hobbs sought compensation
from John and Taupin, but his requests were apparently
rebuffed. Consequently, in 2012, Hobbs sued John,
Taupin, and Big Pig in the Northern District of Illinois
for copyright infringement in violation of the Copyright
Act of 1976.1 Hobbs also asserted two related state law
claims. The defendants moved to dismiss Hobbs’s
entire complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim.2
In opposing the defendants’ motion, Hobbs identified
a number of allegedly similar elements between the two
songs. He argued that his selection and combination of
those elements in “Natasha” constituted a unique ex-
pression entitled to copyright protection, and that the
1
Although Hobbs brought his action twenty-seven years
after “Nikita” was authored and eleven years after Hobbs
allegedly first encountered “Nikita,” the defendants did not
raise the three-year statute of limitations, see 17 U.S.C. § 507(b),
as a defense in their motion to dismiss.
2
Although Hobbs did not attach the lyrics of either “Natasha”
or “Nikita” to his complaint, the two songs are the central
focus of the complaint. See Wright v. Associated Ins. Cos., 29
F.3d 1244, 1248 (7th Cir. 1994) (“[D]ocuments attached to a
motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff’s complaint and are central to
his claim.”). Furthermore, Hobbs does not challenge the
district court’s reliance on the lyrics of the two songs in
ruling on the defendants’ motion to dismiss.
4 No. 12-3652
defendants’ similar use of those elements in “Nikita”
supported a claim for copyright infringement. The
district court concluded that the elements identified by
Hobbs are not entitled to copyright protection when
considered alone. The district court also rejected Hobbs’s
“unique combination” theory because it thought that
Peters v. West, 692 F.3d 629, 632 (7th Cir. 2012), precluded
a copyright infringement claim based upon a combina-
tion of similar elements that are unprotectable individu-
ally. Despite rejecting Hobbs’s “unique combination”
theory, the district court nevertheless went on to
consider that argument, and concluded that the similar
elements considered in combination still could not
support a claim for copyright infringement. The district
court also concluded that the Copyright Act preempted
Hobbs’s state law claims. Consequently, the district
court granted the defendants’ motion and dismissed
Hobbs’s entire action with prejudice. Hobbs appeals.
II. Lyrics
The lyrics to “Natasha” are:
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Natasha . . . Natasha . . . I didn’t want to go
Natasha . . . Natasha . . . the freedom you’ll never know
The freedom you’ll never know
But a Ukraine girl and a UK guy just never stood a
chance
No. 12-3652 5
Never made it to the movies, never took you to a dance
You never sent me a Valentine, I never gave you
flowers
There was so much I had to say
But time was never ours
You sailed away—no big goodbyes
Misty tears in those pale blue eyes
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Run my fingers through your hair
Natasha . . . Natasha . . . I didn’t want to go
Natasha . . . Natasha . . . the freedom you’ll never know
The freedom you’ll never know
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Natasha . . . Natasha . . . I didn’t want to go
Natasha . . . Natasha . . . the freedom you’ll never know
The freedom you’ll never know
(Spoken quietly) But Natasha . . . Remember me
The lyrics to “Nikita” are:
Hey Nikita is it cold
In your little corner of the world
You could roll around the globe
And never find a warmer soul to know
6 No. 12-3652
Oh I saw you by the wall
Ten of your tin soldiers in a row
With eyes that looked like ice on fire
The human heart a captive in the snow
Oh Nikita you will never know, anything about my
home
I’ll never know how good it feels to hold you
Nikita I need you so
Oh Nikita is the other side of any given line in time
Counting ten tin soldiers in a row
Oh no, Nikita you’ll never know
Do you ever dream of me
Do you ever see the letters that I write
When you look up through the wire
Nikita do you count the stars at night
And if there comes a time
Guns and gates no longer hold you in
And if you’re free to make a choice
Just look towards the west and find a friend
Oh Nikita you will never know, anything about my
home
I’ll never know how good it feels to hold you
Oh no, Nikita you’ll never know
Oh Nikita you will never know, anything about my
home
No. 12-3652 7
I’ll never know how good it feels to hold you
Nikita I need you so
Oh Nikita is the other side of any given line in time
Counting ten tin soldiers in a row
Oh no, Nikita you’ll never know
Counting ten tin soldiers in a row.
III. Discussion
On appeal, Hobbs relies solely upon his “unique combi-
nation” theory.3 Hobbs contends that the unique selec-
tion, arrangement, and combination of individually
unprotectable elements in a song can be entitled to copy-
right protection. Hobbs argues that Peters does not pre-
clude such a theory, or alternatively, that we should
overrule Peters. Finally, Hobbs contends that the
similar elements found in “Natasha” and “Nikita,” when
considered in combination, support a claim for copy-
right infringement.
Ultimately, as explained below, we hold that Hobbs
failed to state a claim for copyright infringement
because, even when the allegedly similar elements
between the songs are considered in combination, the
songs are not substantially similar. Therefore, we need
not decide if Hobbs is correct when he argues that a
3
Thus, we do not consider whether the allegedly similar
elements identified by Hobbs are entitled to copyright pro-
tection when considered alone. Nor do we review the district
court’s ruling that Hobbs’s state law claims are preempted by
the Copyright Act.
8 No. 12-3652
unique selection, arrangement, and combination of indi-
vidually unprotectable elements in a song can support
a copyright infringement claim. Similarly, we need not
decide whether the district court correctly interpreted
Peters as prohibiting such a theory.4
4
In rejecting Hobbs’s “unique combination” theory, the district
court relied upon our statement in Peters that “[i]f the copied
parts are not, on their own, protectable expression, then
there can be no claim for infringement of the reproduction
right.” 692 F.3d at 632. Although we need not address
whether the district court correctly interpreted Peters on this
issue, we observe that there is a wealth of authority
recognizing that, in certain situations, a unique arrangement
of individually unprotectable elements can form an original
expression entitled to copyright protection. See Feist Publ’ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991) (“The
question that remains is whether [the plaintiff] selected, coordi-
nated, or arranged these uncopyrightable facts in an original
way.”); JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 917 (7th
Cir. 2007) (“[T]he very combination of these [unprotectable]
elements as well as the expression that is [the work itself]
are creative.”); Bucklew v. Hawkins, Ash, Baptie & Co., 329
F.3d 923, 929 (7th Cir. 2003) (“[I]t is the combination of
[unprotectable] elements, or particular novel twists given to
them, that supply the minimal originality required for copy-
right protection.”); Roulo v. Russ Berrie & Co., 886 F.2d 931, 939
(7th Cir. 1989) (“While it is true that these elements are
not individually capable of protection, just as individual
words do not deserve copyright protection, it is the unique
combination of these common elements which form the copy-
righted material.”); see also Stava v. Lowry, 323 F.3d 805, 811
(continued...)
No. 12-3652 9
We review a dismissal under Rule 12(b)(6) de novo.
Peters, 692 F.3d at 632. In conducting our review, we
construe the allegations in the complaint in the light
most favorable to Hobbs in order to determine whether
he has stated a plausible claim for copyright infringe-
ment. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To establish his copyright infringement claim, Hobbs
must prove “(1) ownership of a valid copyright; and
(2) unauthorized copying of constituent elements of the
work that are original.” Peters, 692 F.3d at 632. Because
defendants rarely admit to copying the works of others,
Hobbs may establish the second element of his infringe-
ment claim by showing that the defendants had the op-
portunity to copy “Natasha” and that the two works
are “substantially similar,” thereby supporting an
inference that the defendants actually did copy his
song. Id. at 633. For the purposes of their motion to
dismiss, the defendants concede that Hobbs owns a
valid copyright for “Natasha,” and that they had the
4
(...continued)
(9th Cir. 2003) (“It is true, of course, that a combination of
unprotectable elements may qualify for copyright protection.”)
(emphasis in original); Knitwaves, Inc. v. Lollytogs Ltd., 71
F.3d 996, 1003-04 (2d Cir. 1995) (“As the Supreme Court’s
decision in [Feist] makes clear, a work may be copyrightable
even though it is entirely a compilation of unprotectible ele-
ments.”). Indeed, in Peters, our conclusion that the similarities
between the two songs were not individually protectable
did not keep us from considering whether the plaintiff
could establish a copyright infringement claim based on “all of
these [unprotectable] elements in combination.” 692 F.3d at 636.
10 No. 12-3652
opportunity to copy it. Thus, the defendants can only pre-
vail on their motion to dismiss if “Natasha” and “Nikita”
are not “substantially similar” as a matter of law. That is,
if as a matter of law “Natasha” and “Nikita” do not “share
enough unique features to give rise to a breach of the duty
not to copy another’s work.” Id. at 633-34.
Hobbs contends that the two songs are “substantially
similar” because “Nikita” appropriates “Natasha”’s unique
selection, arrangement, and combination of certain ele-
ments. In support of this argument, Hobbs identifies
the following allegedly similar elements that are found
in both songs:
(1) A theme of impossible love between a Western
man and a Communist woman during the Cold
War;
(2) References to events that never happened;
(3) Descriptions of the beloved’s light eyes;
(4) References to written correspondence to the be-
loved;
(5) Repetition of the beloved’s name, the word
“never,” the phrase “to hold you,” the phrase “I
need you,” and some form of the phrase “you will
never know;” and
(6) A title which is a one-word, phonetically-similar
title consisting of a three-syllable female 5 Russian
5
Nikita is actually a masculine name in Slavic countries,
but it is often used as a feminine name elsewhere. See
(continued...)
No. 12-3652 11
name, both beginning with the letter “N” and
ending with the letter “A.”
Hobbs’s argument flounders on two well-established
principles of copyright law. First, the Copyright Act
does not protect general ideas, but only the particular
expression of an idea. Atari, Inc. v. N. Am. Philips
Consumer Elecs. Corp., 672 F.2d 607, 615 (7th Cir. 1982) (“It
is an axiom of copyright law that the protection granted
to a copyrightable work extends only to the particular
expression of an idea and never to the idea itself.”
(internal quotation marks omitted)), superseded by statute
on other grounds as recognized in Scandia Down Corp. v.
Euroquilt, Inc., 772 F.2d 1423, 1429 (7th Cir. 1985); see also
JCW, 482 F.3d at 917 (“It is, of course, a fundamental
tenet of copyright law that the idea is not protected, but
the original expression of the idea is.” (citing Feist, 499
U.S. at 348-49)). Second, even at the level of particular
expression, the Copyright Act does not protect “incidents,
characters or settings which are as a practical matter
indispensable, or at least standard, in the treatment of a
given topic.” Incredible Techs., Inc. v. Virtual Techs., Inc., 400
F.3d 1007, 1012 (7th Cir. 2005) (internal quotation
marks omitted); see also Bucklew, 329 F.3d at 929 (“[A]
copyright owner can’t prove infringement by pointing
to features of his work that are found in the defendant’s
work as well but that are so rudimentary, commonplace,
5
(...continued)
http://en.wikipedia.org/wiki/Nikita_(given_name) (last visited
July 9, 2013).
12 No. 12-3652
standard, or unavoidable that they do not serve to dis-
tinguish one work within a class of works from another.”).
Here, a careful review of both songs’ lyrics reveals
that Hobbs’s first four allegedly similar elements are
expressed differently in “Natasha” and “Nikita.” And the
remaining similar elements are rudimentary, common-
place, standard, or unavoidable in popular love songs.
Specifically, Hobbs’s first allegedly similar element
is that each song tells the tale of an impossible romance
between “a Western man and a Communist woman”
separated by the Cold War (a widespread concern at the
time the songs were authored). Although both songs
contain the idea of an impossible love affair due to a
conflict, each song expresses this general idea differently.
That is, “Natasha” and “Nikita” tell different stories
about impossible romances during the Cold War.
“Natasha” tells the story of two people who briefly
become intimate, but who are forced to part ways
because one is not free (presumably because of the Iron
Curtain) and must sail away. But for a short time, at
least, he could hold her hand, whisper in her ear, run
his fingers through her hair, and cry with her when
forced to separate. “Nikita” tells the tale of a man who
sees and desires a woman whom he can never meet
because she is on the other side of a “line” held in by “guns
and gates” (perhaps the Berlin Wall). He could only
imagine and wish for a chance to hold her, to tell her
about his home, and if the border guards were to leave
and set her free then to find and meet her, but he thinks
that will never happen.
No. 12-3652 13
Hobbs’s second, third, and fourth allegedly similar
elements fare no better. While it is true that “Natasha”
and “Nikita” both contain references to unfulfilled
desires or events that never occur, what matters is that
the particular ways that each song expresses these
concepts are dissimilar. “Natasha” refers to “the freedom
[the woman will] never know,” a relationship that “never
stood a chance,” and never going to the movies or a
dance. In contrast, “Nikita” says that the woman could
“never find a warmer soul to know” and “will never
know anything about [the man’s] home,” and that the
man will “never know how good it feels to hold [the
woman].” Similarly, while both songs refer to the
beloved’s light eyes and to written correspondence be-
tween the lovers, they do so in entirely different ways.
“Natasha” refers to “pale blue eyes,” whereas “Nikita”
talks about “eyes that looked like ice on fire.” Again,
“Natasha” contains the complaint that, “You never sent
me a Valentine,” while “Nikita” contains the wholly
dissimilar query, “Do you ever see the letters that I
write[?]” In short, Hobbs cannot rely upon a combina-
tion of dissimilar expressions to establish that “Nikita”
infringes upon “Natasha”’s “unique selection, arrange-
ment, and combination of” of those expressions.
However, Hobbs’s fifth and sixth similar elements are
expressed in similar ways (more or less) within both songs.6
6
Although both songs repeatedly use a form the phrase “will
never know,” the context is somewhat different. “Natasha”
(continued...)
14 No. 12-3652
Both “Natasha” and “Nikita” make liberal use of repeti-
tion—including repeatedly using the word “never,” the
phrases “to hold you” and “you’ll never know,” as well as
the beloved’s name. Additionally, each song’s title is a
Russian name beginning with the letter “N” and ending
with the letter “A.” While these similar elements
are present at the level of expression, they are also rudi-
mentary, commonplace, standard, or unavoidable in
popular love songs.7 Repetition is ubiquitous in popular
music. See Selle v. Gibb, 741 F.2d 896, 905 (7th Cir. 1984)
(observing that “popular music” is a field “in which all
songs are relatively short and tend to build on or repeat
a basic theme”). And, as the district court observed,
the United States Copyright Office’s Registered Works
Database reveals that numerous works share the titles
“Natasha” and “Nikita.” See http://cocatalog.loc.gov/ (last
visited July 9, 2013). Thus, that “Natasha” and “Nikita”
6
(...continued)
refers to the “freedom you’ll never know,” whereas in “Nikita”
the singer laments that he “will never know” how it feels to
touch the object of his affection, and that she “will never
know anything about [his] home.”
7
Indeed, even Hobbs’s first four allegedly similar elements
reflect concepts that are standard fare in love songs. Love songs
are replete with references to impossible love, unfulfilled
desires, events that never occur, light eyes, and written corre-
spondence between lovers. See Selena Gomez & the Scene,
Love You Like A Love Song (Hollywood Records 2011) (“It’s been
said and done / Every beautiful thought’s been already
sung . . . .”).
No. 12-3652 15
share a few similar expressions that are commonplace
in love songs could not support a finding that the songs
are “substantially similar.” Cf. Johnson v. Gordon, 409
F.3d 12, 22 (1st Cir. 2005).
We agree with the district court that “Natasha” and
“Nikita” simply “tell different stories,” Hobbs v. John,
No. 12C3117, 2012 WL 5342321, at *7 (N.D. Ill. Oct. 29,
2012), and “are separated by much more than ‘small
cosmetic differences,’” Peters, 692 F.3d at 636 (quoting
JCW, 482 F.3d at 916). “Natasha” tells the story of an
actual, though brief, romantic encounter between a
man from the United Kingdom and a woman from
Ukraine. Their tangible relationship is severed because
the woman must sail away. In contrast, “Nikita” tells
the tale of man who sees and loves a woman from afar.
But that love can never find physical expression
because the two are separated by “guns and gates.”
We conclude that as a matter of law “Natasha” and
“Nikita” are not “substantially similar” because they do
not “share enough unique features to give rise to a
breach of the duty not to copy another’s work.” Peters, 692
F.3d at 633-34.
IV. Conclusion
Because “Natasha” and “Nikita” are not “substantially
similar” as a matter of law, Hobbs’s copyright infringe-
ment claim fails as a matter of law. Therefore, we
A FFIRM the judgment of the district court.
7-17-13